Opioid litigation update

By Colin Jorgensen, Risk Management Litigation Counsel

As you know, all 75 Arkansas counties are engaged in litigation against opioid manufacturers and distributors, seeking compensation to implement solutions to the Arkansas opioid epidemic. Several of the defendants have filed bankruptcy in response to litigation across the country, and we are pursuing the counties’ claims in those bankruptcy proceedings. Several of the defendants are engaged in national settlement discussions. The unity of Arkansas governments has been beneficial in these bankruptcy proceedings and settlement discussions.

Although nothing is final at the time of this writing, it is likely that there will be funds flowing to government plaintiffs in the future, and it is time to begin thinking about local solutions to the local problem of the Arkansas opioid epidemic. Courts approving bankruptcy plans and settlements will certainly require that settlement funds be spent to remediate the opioid epidemic — not for any other purpose. Settlement funds may flow directly to governments, or governments may create boards/commissions to receive and disburse funds in accordance with approved purposes. Regardless of the mechanics of how the funds flow, Arkansas counties will have an important voice in advising and deciding how funds are allocated and spent, to do what we can to help our communities and families recover from the opioid epidemic.

Although terms are not final, we can predict an outline of the types of expenditures and programs that will be considered “approved purposes” for funds from opioid litigation. Below is a list of such approved purposes for your consideration. This list is taken from the proposed MOU among the state, counties, and cities of Arkansas, which I have written about recently. County leaders will need to make decisions about how to seek/invest funds for resources and programs like these listed below. There is not enough money in the world for everyone to invest as much money as they would like in every possible program — everyone will have to make hard decisions. If you are on the front lines of the Arkansas opioid epidemic, as many of you are, please begin to think about what types of programs and investments make the most sense for your community. Hopefully soon, we will seek that input from you and begin to fund solutions that are desperately needed in Arkansas communities.

Potential Approved Purposes for Abating the Arkansas Opioid Epidemic:

Expand the availability of treatment for individuals affected by substance use disorders;

Develop, promote and provide evidence-based substance use prevention strategies;

Provide substance use avoidance and awareness education;

Decrease the oversupply of licit and illicit opioids;

Support recovery from addiction services performed by qualified and appropriately licensed providers;

Support treatment of Opioid Use Disorder (OUD) and any co-occurring Substance Use Disorder or Mental Health (SUD/MH) issues;

Support people in treatment for and recovery from OUD and any co-occurring SUD/MH issues;

Provide connections to care for people who have – or are at risk of developing – OUD and any co-occurring SUD/MH issues;

Address the needs of persons with OUD and any co-occurring SUD/MH issues who are involved – or are at risk of becoming involved – in the criminal justice system;

Address the needs of pregnant or parenting women with OUD and any co-occurring SUD/MH issues, and the needs of their families, including babies with neonatal abstinence syndrome;

Support efforts to prevent over-prescribing and ensure appropriate prescribing and dispensing of opioids;

Support efforts to discourage or prevent the misuse of opioids;

Support efforts to prevent or reduce overdose deaths or other opioid-related harms;

Support law enforcement expenditures relating to the opioid epidemic;

Educate law enforcement or other first responders regarding appropriate practices and precautions when dealing with fentanyl or other drugs;

Support efforts to provide leadership, planning, and coordination to abate the opioid epidemic;

Provide funding for staff training or networking programs and services to improve the capability of government, community, and not-for-profit entities to abate the opioid crisis;

Support infrastructure and staffing for collaborative cross-system coordination to prevent opioid misuse, prevent overdoses, and treat those with OUD and any co-occurring SUD/MH issues, or implement other strategies to abate the opioid epidemic described in this opioid abatement strategy list (e.g., health care, primary care, pharmacies, prescription drug monitoring programs, etc.); and

Support opioid abatement research.